Beverly Hills Foodland v. United Food Workers, No. 90-2095C(5).

• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Writing for the Court: LIMBAUGH
• Citation: 840 F. Supp. 697
• Decision Date: 14 December 1993
• Docket Number: No. 90-2095C(5).
• Parties: BEVERLY HILLS FOODLAND, INC., Plaintiff, v. UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 655, Defendant.

840 F. Supp. 697

BEVERLY HILLS FOODLAND, INC., Plaintiff,
v.
UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 655, Defendant.

No. 90-2095C(5).

United States District Court, E.D. Missouri, E.D.

December 14, 1993.

840 F. Supp. 698

COPYRIGHT MATERIAL OMITTED

840 F. Supp. 699

Terry A. Bond, Partner, Vines and Ross, St. Louis, MO, for plaintiff

Greg A. Campbell, Jerome A. Diekemper, Sherrie A. Schroder, Diekemper and Hammond, St. Louis, MO, for defendant.

MEMORANDUM

LIMBAUGH, District Judge.

This case was removed to federal court on November 5, 1990 based upon federal preemption by the National Labor Relations Act, 29 U.S.C. § 141 et seq. (as amended). The case was originally assigned to Judge Clyde S. Cahill. On May 4, 1993 the case was reassigned to this Court. On September 9, 1993 the plaintiff filed a ten (10) count second amended complaint alleging that the defendant's picketing and boycotting activities defamed the plaintiff and tortiously interfered with the business relationship with its customers. In its second amended complaint, Counts I and IV seek damages for libel in connection with handbills passed out by the defendant; Counts III and V seek damages for slander in connection with remarks made during a telephone conversation between defendant's representative and a representative of the local Congress of Racial Equality (CORE) chapter, and statements made by the defendant's picketers to potential customers of the plaintiff; and Count II seeks damages for the defendant's tortious interference with the right of contract (i.e. defendant's actions allegedly caused the plaintiff to lose business due to the decrease in consumer shopping). Counts VI through X are the same as Counts I through V, respectively, except for the added allegation of actual malice. This matter is before the Court on the defendant's motion for summary judgment (#27), filed June 11, 1993 and renewed (following the filing of the second amended complaint) on September 9, 1993. Responsive pleadings have been filed. This case is currently set on the Court's December 27, 1993 jury trial docket.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the

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moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). With these principles in mind, the Court turns to an examination of the facts.

The pertinent material facts in this case are not in dispute. The plaintiff is the owner of the (now defunct) Beverly Hills Foodland Supermarket at 6700 National Bridge, in the City of Beverly Hills, St. Louis County, Missouri. Beverly Hills is a predominantly Afro-American community. Defendant United Food & Commercial Workers Union, Local 655 (hereinafter referred to as simply Local 655) is a labor organization within the meaning of the National Labor Relations Act (NLRA), 29 U.S.C. § 152(5).

On or about April 23, 1989 Beverly Hills Foodland opened for business. Shortly thereafter, representatives of Local 655 contacted the supermarket's owners about unionizing the employees. Foodland rejected the unionization overtures. Local 655 then began to conduct organizational activities on Foodland's premises. Foodland reacted negatively to these organizational activities; in fact, it called the police to have union organizers removed from the parking lot. After this incident, on or about April 21, 1989, Local 655 filed a complaint against Beverly Hills Foodland with the National Labor Relations Board alleging unfair labor practices. On June 22, 1989 a settlement was reached in which Foodland was required to post a notice in its store for sixty (60) days stating that it would not interfere with Local 655's peaceful organizational activities. Affidavit of Patrick McDonough (Local 655's business representative).¹

On July 10, 1989 Local 655 notified plaintiff, in writing, that "we are ceasing any and all organizing activities at Beverly Hills Foodland, 6700 Natural Bridge ..." and that Local 655 "has no intentions to continue our present organizing efforts of your employees, and we are not seeking to have your company recognize Local 655." Finally, the union declared that in regard to "those employees who have expressed an interest in our organizing activities, we are not asking anyone to withhold their services." Letter of July 10, 1989 written by Patrick McDonough and addressed to Terrance LeGrand (one of the owners of Beverly Hills Foodland). Thereafter, Local 655 no longer was present on the plaintiff's premises.

However, in November 1989, it came to the defendant's attention that the plaintiff was paying its employees wages and benefits lower than those paid in nearby unionized grocery stores; that its owners and managers were white, while its non-management employees were predominantly black; that most of the black employees were employed on less than full-time status (while most of the white employees were full-time); and that its owners, managers, and employees mainly resided outside of the Beverly Hills community. On November 3, 1989 Local 655 conducted a comparison of prices ("price survey") charged by the plaintiff and the unionized National store (at 91 North Oaks) for the

840 F. Supp. 701

same items. The cash register receipts showed that plaintiff charged 9% more than the National store. Affidavit of Patrick McDonough and exhibits attached, filed August 9, 1991

Thereafter, Local 655 conducted a campaign which included picketing by union members, on the plaintiff's premises, holding placards proclaiming that Foodland was "unfair" to its employees and asking the public not to patronize Foodland. Flyers were mailed to nearby residents asking them to boycott Foodland because it was non-union and to ask Foodland certain questions regarding its employment practices. A handbill was distributed on the plaintiff's premises which identified the plaintiff as a "rat" for paying wages and benefits lower than those paid at the unionized grocery stores.² The picketing took place from November 1989 to April 1990. It appears that the flyers were distributed between mid-November 1989 through December 1989.

From April 1990 to May 1990 Local 655 rented a billboard approximately two blocks from the plaintiff's supermarket. Defendant used this billboard to urge the public to boycott the Foodland supermarket because of its non-union status.

Finally, on or about April 26 or 27, 1990 defendant's business representative, Patrick McDonough telephoned Gene Fowler, the City Chairman for the Congress of Racial Equality (CORE). During this conversation, McDonough made certain remarks to Mr. Fowler in which he referred to the owner(s) of Beverly Hills Foodland as "racist". Affidavit of Gene Fowler, filed December 12, 1991. Plaintiff further alleges, which the defendant does not appear to dispute, that picketers told potential shoppers at Foodland that the owner(s) were "racist". Local 655's campaign ceased in May 1990 as a result of the NLRB's ruling on a complaint filed by CORE against Local 655. Beverly Hills Foodland closed for business permanently on December 29, 1990.

Defendant seeks summary judgment, as to all counts, because it claims its campaign activities were protected under the federal labor laws and the First Amendment. It argues that the plaintiff's state tort claims for defamation are not actionable because 1) the activities complained of took place during a labor dispute, consequently, plaintiff must show actual malice on the part of the defendant, which it has failed to do so; and 2) terms such as "unfair", "rat", and "racist" are not considered defamatory when used during a labor dispute. Defendant further contends that the plaintiff has failed to prove all the elements necessary for a successful claim of tortious interference. Plaintiff counters that the defendant's activities did not take place during a "labor dispute"; i.e. that any such dispute ended with Patrick McDonough's letter of July 10, 1989. Since there was no labor dispute, plaintiff contends that the...